Fields v. City of Tulsa , 753 F.3d 1000 ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
May 22, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
PAUL CAMPBELL FIELDS,
Plaintiff - Appellant,
v.
CITY OF TULSA; CHARLES W.
JORDAN, individually and in his official
capacity as Chief of Police, Tulsa Police
Department; ALVIN DARYL
WEBSTER, individually and in his
No. 12-5218
official capacity as Deputy Chief of
Police, Tulsa Police Department,
Defendants - Appellees.
_____________________________
AMERICAN CIVIL LIBERTIES UNION;
AMERICAN CIVIL LIBERTIES UNION OF
OKLAHOMA,
Amici Curiae.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. No. 4:11-CV-00115-GKF-FHM)
Robert Joseph Muise, American Freedom Law Center, Ann Arbor, Michigan, (Scott
Wood, Wood, Puhl & Wood, PLLC, Tulsa, Oklahoma, and Erin Elizabeth Mersino,
Thomas More Law Center, Ann Arbor, Michigan, with him on the briefs) for Plaintiff –
Appellant.
Gerald M. Bender (David O’Meilia, City Attorney, and Brandon J. Burris with him on
the brief), Tulsa, Oklahoma, for Defendants – Appellees.
Daniel Mach and Heather L. Weaver, American Civil Liberties Union Foundation,
Washington, D.C., Jennifer Lee, American Civil Liberties Union Foundation, New York,
New York, and Ryan Kiesell and Brady Henderson, American Civil Liberties Union of
Oklahoma, Oklahoma City, Oklahoma, filed an amicus curiae brief for Defendants –
Appellees.
Before HARTZ, TYMKOVICH, Circuit Judges, and JACKSON, District Judge*.
HARTZ, Circuit Judge.
Paul Fields, a captain in the Tulsa, Oklahoma, police department, filed a civil-
rights complaint under 42 U.S.C. § 1983 against the City of Tulsa; Charles Jordan, the
Chief of Police; and Alvin Daryl Webster, the Deputy Chief of Police (collectively,
Defendants). The suit challenged his punishment for objecting to an order requiring him
either to attend or to order subordinates to attend a law-enforcement appreciation event
hosted by the Islamic Society of Tulsa. (We refer to this order as the “Attendance
Order.”) He claimed that the punishment violated the First Amendment prohibitions
against impairing the rights of free exercise of religion and of association as well as the
prohibition against the establishment of religion. He also raised an equal-protection
*
The Honorable R. Brooke Jackson, United States District Judge for the District of
Colorado, sitting by designation.
2
claim. He later sought to amend his complaint to add a claim that his freedom of speech
was violated when he suffered retaliation for bringing this lawsuit and a claim that he was
denied rights protected by the Oklahoma Religious Freedom Act (ORFA). The United
States District Court for the Northern District of Oklahoma denied leave to amend and
ultimately granted summary judgment for Defendants.
We have jurisdiction under 28 U.S.C. § 1291 and affirm. First, the Attendance
Order did not burden Fields’s religious rights because it did not require him to violate his
personal religious beliefs by attending the event; he could have obeyed the order by
ordering others to attend, and he has not contended on appeal that he had informed his
supervisors that doing so would have violated his religious beliefs. Second, the order did
not violate the Establishment Clause because no informed, reasonable observer would
have perceived the order or the event as a government endorsement of Islam. Third, the
order did not burden Fields’s right of association because it did not interfere with his
right to decide what organizations to join as a member. Fourth, Fields’s equal-protection
claim duplicates his free-exercise claim and fails for the same reason. And fifth, the
district court did not abuse its discretion in denying Fields’s motion to amend the
complaint to add ORFA and free-speech retaliation claims because the amendment would
have been futile. He has provided no reason why his ORFA claim could succeed when
his religion claims under the First Amendment do not. And his retaliation claim would
fail because the interests of the Tulsa Police Department (TPD) as an employer
outweighed Fields’s free-speech interests in filing his suit.
3
I. BACKGROUND
The material facts are undisputed. At the time of the events in question, Captain
Fields commanded 26 officers and five supervisors. The chain of command above him
was Major Julie Harris, Deputy Chief Webster, and Chief Jordan.
For more than 23 years TPD had engaged in community policing, in which it
participated in events to build trust with the local community. As part of that mission,
TPD accepted requests to attend about 3,500 community events between 2004 and 2011.
Some 327 of those events were at religious venues or institutions affiliated with religious
faiths, and between 2009 and 2011 there were an additional 25 meetings attended by
community-education officers at religious venues or sponsored by religious
organizations.
In 2010 the FBI notified the Islamic Society of a threat against it. Over the
following months TPD worked to protect the mosque and the school next door. When
the threat was over, the Islamic Society decided to hold an event to thank TPD for its
help. During the planning stages, Webster advised Sheryl Siddiqui, a representative of
the Islamic Society, that TPD officers might not be interested in or willing to tour the
mosque or discuss Islam and that the invitation should make discussion of any topic
discretionary.
Webster announced the event and requested RSVPs at a staff meeting in late
January 2011. On February 16, Webster approved distribution within TPD of an e-mail
from the Islamic Society that contained a flyer for the event and again requested RSVPs.
4
The flyer invited all Tulsa law enforcement to a “Law Enforcement Appreciation Day” to
be held on Friday, March 4. Aplt. App., Vol. I at 193. It read:
Casual Come & Go Atmosphere
Come enjoy a Buffet of American & Ethnic Foods:
Brownies & baklava
Baked chicken & Chicken Tikka Masala
Lots more!
Mosque Tours: 15 minutes or an hour- it’s up to you!
Meet Local Muslims & Leadership
Watch the 2-2:45pm weekly congregational prayer service
Presentations upon request: beliefs, human rights, women
All questions welcome!
Id.
When there were no volunteers by late afternoon on February 17, Major Harris
forwarded an e-mail from Webster ordering each shift to send two officers and a
supervisor or commander to the event. The e-mail read:
We are directed by DCOP Webster to have representatives from each
shift—2nd, 3rd and 4th to attend. Here is his note to me:
Re that attached, I have advised Ms. Siddiqui to expect small-group visits at
[11:00, 1:30, and 4:30]. Please arrange for 2 officers and a supervisor or
commander from each of your shops to attend at each of those times. They
can expect to be at the facility for approximately 30 minutes but can stay
longer if they wish.
Id. at 194. Webster testified that he chose those times to ensure that officers would not
have to be present during the 2:00 to 2:45 p.m. prayer service unless they wanted to stay
for it.
That evening, Fields sent an e-mail to Harris, Webster, Jordan, his lawyer, and ten
other people, including several subordinates. The e-mail read:
5
Major,
I’m a little confused in reference to DCOP Webster’s directive to send 2
officers and at least 1 supervisor or shift commander from 2nd, 3rd, and 4th,
[sic] shifts to the Islamic Society of Tulsa Law Enforcement Appreciation
Day. Initially, this was to be on a voluntary basis, however now it is a
directive. What has changed?
I have no problem with officers attending on a voluntary basis; however, I
take exception to requiring officers to attend this event. Past invitations to
religious/non-religious institutions for similar purposes have always been
voluntary. I believe this directive to be an unlawful order, as it is in direct
conflict with my personal religious convictions, as well as to be conscience
shocking.
This event is not a police “call for service”, [sic] which I would readily
respond to, as required by my Oath of Office. Instead, it is an invitation to,
[sic] tour a Mosque, meet Muslim Leadership, watch a congregational
prayer service, and receive “presentations on beliefs, human rights, and
women.” It is my opinion and that of my legal counsel, that forcing me to
enter a Mosque when it is not directly related to a police call for service is
a violation of my Civil Rights.
Please consider this email my official notification to the Tulsa Police
Department and the City of Tulsa that I intend not to follow this directive,
nor require any of my subordinates to do so if they share similar religious
convictions.
Id. at 195 (italics added).
The next day, Webster responded to Fields in a three-page letter. He wrote that
the Islamic Society was going to considerable pains to prepare a meal and tours for the
event; that it would be unnecessary to order officers to attend if there were an adequate
number of volunteers; that there would be an issue of disparate treatment and possible
legal repercussions if TPD failed to attend; and that community policing events such as
this one were as much a part of TPD’s mission as direct calls for service. He wrote that
6
officers were “not required to participate in any religious ceremony, make any profession
of faith, or express opinions on or sympathy with any religious belief system. They are
simply expected to meet with members of the public who have expressed a desire to meet
with them at a place of lawful assembly.” Id. at 209. He repeated that Fields himself was
not required to “participate or assist in any religious observance, make any expression of
belief, or adopt any belief system.” Id. And he urged Fields to reconsider and reminded
him of the consequences of refusing to obey a lawful order, emphasizing that “refusal on
the part of a leader, including extending that refusal to subordinate personnel, is
particularly serious and injurious to good discipline.” Id.
Fields responded by e-mail that he had conferred with counsel and that there was
no need for him to reconsider. Webster then directed Fields to report to Jordan’s office
on Monday, February 21, so that they would have an opportunity to understand each
other’s positions before taking further action.
During the meeting Webster asked Fields if he had requested volunteers for the
event. Fields said that he had but that there were none. Webster asked, “Are you
prepared to designate two officers and a supervisor or yourself to attend this event?” Id.
at 173. Fields said, “No.” Id. Webster asked, “If ordered?” Id. Fields responded, “No,
Chief, I am not.” Id. Moments later Webster served Fields with papers notifying him
that because of his refusal to follow a direct order he was being transferred immediately
to another division and would be investigated by TPD Internal Affairs. The media began
covering the story only hours later.
7
Although the Attendance Order was still in effect, Harris told Fields’s former shift
the next day that she would not make the event mandatory but would still like volunteers.
On February 23, Fields filed his first complaint in this lawsuit, naming Webster as the
only defendant. On February 24 (three days after Fields’s transfer), Harris forwarded to
the supervisors under Fields’s command and others an e-mail from Webster that read,
“We have more volunteers than we RSVP’d. No detailing will be necessary.” Id. at 199.
When the event was held on March 4, about 150 TPD officers attended, far more
than the 27 anticipated in the RSVP from TPD. Members of the sheriff’s office, district
attorney’s office, and FBI had been invited and also attended. Of the nine shifts that had
been asked to provide officers, Fields’s former shift was the only one that did not send
anyone. During the event, Islamic Society members discussed Islamic beliefs,
Mohammed, Mecca, and why and how Muslims pray; they showed officers a Koran; and
they showed the officers Islamic books and pamphlets that were for sale and encouraged
the officers to buy them. At least one TPD officer stayed for the prayer service and was
photographed observing it. After the event the Islamic Society posted on its website a
photograph of officers sitting at a table with members of the mosque with the caption,
“Discover Islam Classes for Non-Muslims.” Id. at 206.
On March 10, Captain Luther Breashears of TPD Internal Affairs (IA) sent an
e-mail to Fields notifying him that “Chief Chuck Jordan has requested IA to conduct an
administrative investigation in regards to your refusal to attend and refusal to assign
8
officers from your shift, who shared your religious beliefs, to attend” the Islamic Society
event. Id. at 200.
Two weeks later, Fields amended his complaint, this time naming the City of
Tulsa, Chief Jordan, and Deputy Chief Webster as defendants, individually and in their
official capacities. It alleged that they had violated his First Amendment right to free
exercise of religion, the Establishment Clause, his right to freedom of association, and the
Equal Protection Clause. Although largely irrelevant to the claims, the complaint also
contained five pages of allegations about “shariah-adherent” Islam and the Islamic
Society, with references to “jihad” and the Muslim Brotherhood. Id. at 17‒21. Fields
sought damages, a declaration that his rights had been violated, an injunction prohibiting
the enforcement of the policies that led to his punishment, and the expungement from his
personnel file of all references to the incident.
TPD Internal Affairs completed its investigation of Fields on April 6, 2011. The
report summarized the events that led to the investigation; the media coverage; and
interviews with Webster, Harris, four of Fields’s subordinate supervisors, and Fields
himself. Webster said that he had thought each shift would respond to the Attendance
Order by seeking volunteers, that Fields had misunderstood the order, and that Fields did
not identify which of his religious convictions would be violated. He also said that when
Fields publicized his intention not to follow the order and not to require his subordinates
to do so, Fields had committed an act of insubordination unprecedented in TPD history,
which was corrosive of both internal discipline and the public’s respect for the
9
department. Fields’s subordinate supervisors said that Fields had never asked for
volunteers or ordered anyone to follow the order. Fields said in his interview that he had
discussed the order with two of his subordinates, who indicated that they were
uncomfortable with the order but did not say that they shared his religious convictions;
that he had never told his superiors which of his religious convictions would be violated
by the order; that he sent the e-mail as he did to comply with his duty to alert TPD and
the City to an order that he and his counsel believed to be unlawful; and that he had no
opportunity to comply with the order because he had asked for clarification and shortly
afterward the order was made voluntary.
On June 9, 2011, Chief Jordan issued the personnel order setting forth Fields’s
punishment. It read:
[Y]ou are suspended without pay for 80 hours/10 days, your regular days
off have been included in this timeframe. This action is taken as a result of
your violation of the following Tulsa Police Department Policies, Rules &
Regulations:
You are hereby suspended for 40 hours for the following policy violation:
 Rules and Regulation #6: Duty to be Truthful and Obedient, which
states in part: “Employees shall obey lawful orders from an officer
or employee, verbal or written in nature, including any relayed from
a superior by an employee of the same or lesser rank.”
Specifically, you failed to follow the directives of your chain of command
regarding furnishing officers to attend the “Law Enforcement Appreciation
Day”, [sic] held March 4, 2011.
You are hereby suspended for 40 hours for the following policy violation:
 Rules and Regulation #8: Conduct Unbecoming an Officer or Police
Employee, which states in part: “Employees shall not commit any
act or indulge in any behavior, on or off duty, which tends to bring
10
reproach or discredit upon the Department. They shall not engage
in any conduct that is considered unbecoming an officer or employee
which might be detrimental to the service.”
Specifically, your actions and writings that were made public brought
discredit upon the department related to furnishing officers to attend the
“Law Enforcement Appreciation Day”, [sic] held March 4, 2011.
Id. at 202. The order also stated that further violations would lead to more severe
disciplinary action, including dismissal, and that Fields would not be considered for
promotion for at least a year. Fields’s temporary transfer was made permanent on the day
the order issued. Also, he was assigned to the graveyard shift, and the personnel orders
setting forth his punishment and transfer became a part of his permanent record.
Almost a year after issuing the order, Jordan testified at a May 2012 grievance
hearing that the “actions and writings” for which Fields was punished had been
statements by Fields’s attorney that accused Jordan of assisting in “global jihad” and
accused TPD of trying to force Fields to go to a mosque for a religious service and to
engage in the faith of Islam. Id. at 265–66. On June 16, 2012, Fields sought to amend
his complaint again, this time to add claims alleging that Defendants had violated his
rights under the Oklahoma Religious Freedom Act and that they had violated his First
Amendment right to freedom of speech by retaliating against him for filing this lawsuit.
The district court denied Fields leave to amend, concluding that amendment would be
futile because his new allegations failed to state a claim for relief.
In August 2012 the parties filed cross-motions for summary judgment. The
district court granted summary judgment for Defendants, concluding that Fields’s rights
11
had not been violated because “the directive at issue permitted him to assign others to
attend rather than attend himself.” Id., Vol. IV at 1164.
II. DISCUSSION
Fields appeals the district court’s grant of summary judgment for Defendants on
his free-exercise-of-religion, establishment-of-religion, freedom-of-association, and
equal-protection claims; and its denial of leave to amend his complaint to include his
Oklahoma Religious Freedom Act and First Amendment retaliation claims.
A. Summary Judgment
“We review the district court’s grant of summary judgment de novo, applying the
same standards that the district court should have applied.” Merrifield v. Bd. of Cnty.
Comm’rs, 654 F.3d 1073, 1077 (10th Cir. 2011) (internal quotation marks omitted).
Summary judgment is appropriate “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.” Id. (internal
quotation marks omitted). A dispute is genuine “if there is sufficient evidence on each
side so that a rational trier of fact could resolve the issue either way,” and it is material “if
under the substantive law it is essential to the proper disposition of the claim.” Becker v.
Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013) (internal quotation marks omitted).
When considering a motion for summary judgment, “[w]e examine the record and all
reasonable inferences that might be drawn from it in the light most favorable to the non-
moving party.” Merrifield, 654 F.3d at 1077 (internal quotation marks omitted).
12
1. Free Exercise of Religion
Fields argues that Defendants violated his right to the free exercise of religion
because the Attendance Order required him to order his subordinates to attend the Islamic
Society event and/or to attend the event himself, he refused to comply with it, and he was
punished as a result. The district court granted summary judgment for Defendants on the
ground that no reasonable jury could find that the Attendance Order required Fields
personally to attend the event. We agree.
To establish a free-exercise claim, Fields must show that the government has
placed a burden on the exercise of his religious beliefs or practices. See Bauchman v.
W. High Sch., 132 F.3d 542, 557 (10th Cir. 1997). “A plaintiff states a claim [that his]
exercise of religion is burdened if the challenged action is coercive or compulsory in
nature.” Id.
The Attendance Order created no improper burden. Webster ordered Fields to
“arrange for 2 officers and a supervisor or commander” from his shift to attend the
Islamic Society event. Aplt. App., Vol. I at 194. Fields responded that the order
“requir[ed] officers to attend this event,” and, “forc[ed him] to enter a Mosque.” Id. at
195 (bold omitted). But his view of the order was wrong, not even a reasonable
construction of the order. As the district court pointed out, the order did not require him
to attend because he could assign others to do so. And he has not claimed on appeal that
he ever told his superiors that ordering others to attend (possibly in violation of their
beliefs) would violate his religious beliefs. Although he made clear that he thought that
13
ordering others to attend would be unconstitutional, that is a legal objection, not a
religious one. The Attendance Order did not burden Fields’s free exercise of religion.
Because the Attendance Order did not violate Fields’s right to the free exercise of
religion, TPD could lawfully punish him for violating it. An invalid religious objection
to an order that does not burden your free exercise of religion does not immunize you
from punishment for violation of the order.
In his appellate briefs, however, Fields may be making an additional free-exercise
argument. Although not crystal clear on this point, the briefs may be asserting that even
if the Attendance Order was valid, TPD’s reason for imposing punishment, or at least the
reason for the severity of the punishment, was the religious nature of Fields’s objection to
the order—that is, someone who refused to obey the Attendance Order for purely secular
reasons, or no reason whatsoever, would not have been punished or would have received
a lesser punishment. Moreover, there is evidence in the record that would support this
assertion. Some statements by TPD officials suggest that at least part of the motive for
punishing Fields was that he posed a religious objection to the order and refused to attend
the mosque event on religious grounds.
The problem with this argument is that it was not preserved in the district court.
The reason the court and Defendants did not address the matter is that they did not
perceive that it had been raised by Fields’s pleadings. The point is a subtle one. And
Fields’s complaints, as well as his summary-judgment memoranda, focused on attacking
the Attendance Order. All his assertions that his punishment was improper appear to be
14
based on the alleged illegality of the order. Fields never claimed to be raising a “back-
up” argument—the argument that his free-exercise rights were violated even if the order
was lawful. Accordingly, we do not address this issue on appeal. See R.W. Beck, Inc. v.
E3 Consulting, LLC, 577 F.3d 1133, 1145 (10th Cir. 2009) (“As a general matter, we do
not consider issues that were not raised below.” (internal quotation marks omitted)).
2. Establishment of Religion
The Establishment Clause provides that “Congress shall make no law respecting
an establishment of religion.” U.S. Const. amend. I. The Supreme Court has not spoken
with perfect clarity on the meaning of the Clause. But this circuit continues to follow the
tripartite test set out in Lemon v. Kurtzman, 403 U.S. 602 (1971). See Am. Atheists, Inc.
v. Davenport, 637 F.3d 1095, 1117 (10th Cir. 2010). Under that test, government action
does not violate the Clause if (1) it has a secular purpose; (2) “its principal or primary
effect [is] one that neither advances nor inhibits religion”; and (3) it does not “foster an
excessive government entanglement with religion.” Id. We interpret the first and second
prongs of the Lemon test “in light of Justice O’Connor’s endorsement test.” Id. (internal
quotation marks omitted). That is, we ask “‘whether government’s actual purpose is to
endorse or disapprove of religion,’” and “‘whether, irrespective of government’s actual
purpose, the practice under review in fact conveys a message of endorsement or
disapproval.’” Id. (quoting Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O’Connor, J.,
concurring)). We evaluate the government’s actions from the perspective of a reasonable
15
observer who is aware of the history, purpose, and context of the act in question. See id.
at 1119.
Fields claims that TPD violated the Establishment Clause because the Attendance
Order and the conduct of the event conveyed an official endorsement of Islam. But given
the history, purpose, and context of the order, it would be unreasonable to conclude that
the order or TPD’s attendance at the event was such an endorsement.
TPD had engaged in community policing for more than two decades, participating
in about 3,500 community events between 2004 and 2011. Of those events, more than
350 were held at religious venues or institutions or were sponsored by religious
organizations of various faiths. After TPD spent months protecting the Islamic Society
and the school next door from a terrorist threat, the Society decided to hold the “Law
Enforcement Appreciation Day” event to thank TPD for its help. During the planning
stages Webster advised the Society that officers might not be interested in or willing to
tour the mosque or discuss Islam and that the invitation should make discussion of any
topic discretionary. The flyer for the event announced a “Casual Come and Go
Atmosphere” and offered attendees refreshments and an opportunity to meet the
mosque’s leadership, tour the mosque, watch a prayer service, and learn about Islamic
observance and beliefs—but only upon request. Aplt. App., Vol. I at 193. After seeking
volunteers and receiving none (albeit well in advance of the event), Webster ordered each
shift to arrange for officers to attend the event for 30-minute visits at times selected so
that officers would not have to be present during prayer services unless they chose to be.
16
When Fields objected to the Attendance Order, Webster clarified in a letter that officers
were “not required to participate in any religious ceremony, make any profession of faith,
or express opinions on or sympathy with any religious belief system. They are simply
expected to meet with members of the public who have expressed a desire to meet with
them at a place of lawful assembly.” Id. at 209. Ultimately, about 150 TPD officers
attended the event voluntarily, along with members of the sheriffs’ office, district
attorney’s office, and FBI.
Failure by TPD to attend would have treated the Islamic community differently
from other religious organizations that had sought TPD attendance at prior events. That
concern was foremost among the purposes for the order that Webster expressed when he
first asked Fields to reconsider his objection. Webster wrote:
In the past . . . I and other personnel have either been detailed or strongly
encouraged to attend community outreach events at the Jewish Community
Center, churches in North Tulsa to reach out to African American residents,
and churches in East Tulsa to reach out to Hispanic residents. . . .
....
We have detailed personnel to protect the rights of Westboro Baptist
Church members to protest and to simultaneously protect the rights of their
targets to assemble at religiously themed funerals. Were we to pick and
choose which belief systems we would associate ourselves with as an
agency or which religious venues we would enter for secular or ceremonial
purposes and which we would not, then I believe there would be an issue of
disparate treatment that would reflect dishonor upon us all and possibly
subject the Police Department to liability.
Id. at 207–08 (emphasis added).
17
Fields insists, however, that this event was unique because it involved Islamic
proselytizing. He points to evidence that the event was intentionally held on Friday,
which is Islam’s holy day, and that during the event Islamic Society members discussed
their religious beliefs and encouraged the officers to buy Islamic books and pamphlets on
display. At least one officer was photographed at prayer services and the Islamic Society
website later posted a photograph of officers at a table with mosque members with the
caption “Discover Islam Classes for Non-Muslims.” Id. at 206.
We are not persuaded. No informed reasonable person could view the purpose or
effect of TPD’s attendance at the event as suggesting that Islam is a preferred religion.
Officers attending the event were not required to attend a religious service (and the
timing of visits ensured that no officer would be required to be there during a service),
read Islamic literature, or even discuss Islam. Those who wished to learn more about
Islam could do so. The Establishment Clause does not prohibit governmental efforts to
promote tolerance, understanding, and neighborliness. There is no evidence in the record
of any attempts to convert officers to Islam, as opposed to providing information. And in
any event, if perhaps some representatives of the Center crossed the line, there is nothing
that would suggest to a reasonable observer that such conduct had received governmental
endorsement.
On appeal Fields may be arguing that his punishment violated the Establishment
Clause regardless of whether the Attendance Order and the conduct of the event did so.
But as with his (possible) argument on appeal that his punishment violated the Free
18
Exercise Clause even if the Attendance Order did not, this claim was not preserved
below. We therefore need not consider it.
3. Freedom of Association
Fields contends that the City, Jordan, and Webster violated his right to freedom of
association by punishing him for objecting to the Attendance Order, which, he claims,
compelled an association contrary to his religious beliefs. This claim fails because there
was no interference with his freedom of association.
The First Amendment protects the “right to associate with others in pursuit of a
wide variety of political, social, economic, educational, religious, and cultural ends.”
Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984). And the “[f]reedom of association . . .
plainly presupposes a freedom not to associate.” Id. at 623. Fields, however, has not
shown any impairment of his freedom of association. He does not assert that he has been
prevented from engaging in any association. His complaint is that he was being forced to
associate with the Islamic Society. But the Attendance Order did not require him to
attend the event, much less join the Islamic Society or endorse its faith or message in any
way.
In Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47
(2006), the Supreme Court held that requiring law schools to allow military recruiters on
campus did not violate the schools’ freedom of association because they were not being
required to accept recruiters as “members”—but merely as “outsiders” whose presence
19
served only “the limited purpose of trying to hire students.” Id. at 69. Here, Fields was
never required to be anything more than an outsider with respect to the Islamic Society.
4. Equal Protection
Fields asserts an equal-protection claim premised on the violation of his
fundamental right to the free exercise of religion. In the district court and on appeal,
however, he has not distinguished this claim from his free-exercise claim, never devoting
more than a page to the claim in any pleading. Because we hold that TPD did not violate
Fields’s free-exercise rights and his equal-protection claim is nothing more than a
“rephrasing” of his free-exercise claim, “[i]t falls with [his argument] based on denial of
religious freedom.” Prince v. Massachusetts, 321 U.S. 158, 170 (1944).
B. Denial of Leave to Amend
We review a district court’s denial of leave to amend for abuse of discretion. See
Cohen v. Longshore, 621 F.3d 1311, 1313 (10th Cir. 2010). But if the district court
denied leave to amend because it determined that amendment would be futile, “our
review for abuse of discretion includes de novo review of the legal basis for the finding
of futility.” Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1018 (10th Cir. 2013)
(internal quotation marks omitted). “A proposed amendment is futile if the complaint, as
amended, would be subject to dismissal.” Id. (internal quotation marks omitted). A
complaint is subject to dismissal under Fed. R. Civ. P. 12(b)(6) if the plaintiff fails to
allege facts that would “allow[] the court to draw the reasonable inference that the
20
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
1. Oklahoma Religious Freedom Act
Fields contends that the district court should have allowed him to amend his
complaint to include a claim under the Oklahoma Religious Freedom Act (ORFA), Okla.
Stat. tit. 51, §§ 251–258 (2000). His argument on this point in his opening brief on
appeal concludes by saying, “[F]or the reasons that Defendants violated Plaintiff’s free
exercise rights under the First Amendment, see infra, Defendants similarly violated
Plaintiff’s rights protected by ORFA.” Aplt. Br. at 58. He does not argue that he can
prevail under ORFA if he loses his free-exercise claim. Because we have affirmed the
district court’s denial of Fields’s free-exercise claim, we also affirm the denial of his
motion to amend his complaint to add an ORFA claim. The ORFA claim was doomed to
failure, so an amendment to add it would have been futile.
2. Free-Speech Retaliation
Fields argues that the district court should have allowed him to amend his
complaint to include a claim that Defendants retaliated against him for filing this lawsuit,
in violation of his First Amendment right to freedom of speech. We disagree.
21
Ordinarily, “[t]he First Amendment prohibits the government from punishing a
person for exercising the right to free speech.”1 Deutsch v. Jordan, 618 F.3d 1093, 1097
(10th Cir. 2010). “When the government is [a] person’s employer, however, the right to
free speech is limited in ways that would otherwise be unconstitutional.” Id. “Speech,
for example, can be insubordinate, disruptive, or demoralizing; and government
employers are not required to let such misconduct pass.” Merrifield, 654 F.3d at 1079.
“‘Government employers, like private employers, need a significant degree of control
over their employees’ words and actions; without it, there would be little chance for the
efficient provision of public services.’” Id. (quoting Garcetti v. Ceballos, 547 U.S. 410,
418 (2006)).
To balance the public employee’s right to speak as a citizen on matters of public
concern against the government employer’s interests in ensuring efficient public service,
we use a five-step approach derived from Garcetti and Pickering v. Board of Education,
391 U.S. 563 (1968). See id. We consider:
(1) whether the speech was made pursuant to an employee’s official duties;
(2) whether the speech was on a matter of public concern; (3) whether the
government’s interests, as employer, in promoting the efficiency of the
public service are sufficient to outweigh the plaintiff’s free speech interests;
(4) whether the protected speech was a motivating factor in the adverse
1
Perhaps Fields could have framed his claim as a violation of his right to petition. See
Borough of Duryea v. Guarnieri, 131 S. Ct. 2488, 2491 (2011). But our analysis would
be the same. See id. at 2494‒95 (retaliation claims by public employees are subject to the
same test regardless of whether they are under the Free Speech or Petition clauses of the
First Amendment).
22
employment action; and (5) whether the defendant would have reached the
same employment decision in the absence of the protected conduct.
Leverington v. City of Colo. Springs, 643 F.3d 719, 724 (10th Cir. 2011) (internal
quotation marks omitted). The first three inquiries are ordinarily matters of law for the
court to decide, while the last two are for the factfinder. See Deutsch, 618 F.3d at 1098.
Under this analysis, a public employee’s speech is unprotected if it was made pursuant to
official duties, if it was not on a matter of public concern, or if the balance of interests
favors the employer. See id. at 1097–98.
The district court rejected Fields’s retaliation claim on the ground that the subject
matter of his lawsuit was not a matter of public concern because Fields “allege[d] only an
employment dispute that resulted from an alleged violation of his own personal rights;
not any corruption, impropriety, or malfeasance on the part of officials in the [TPD],”
Aplt. App., Vol. I at 129, and he had “offered no case law for the proposition that filing a
lawsuit turns a dispute over the violation of personal rights into a public concern,” id. at
129–30.
But we need not address the public-concern issue. Regardless of whether the
lawsuit was on a matter of public concern, Fields’s claim cannot survive the balancing of
interests at the third step of the Garcetti/Pickering analysis. “In balancing the
employee’s interest in expression against the government’s interest in efficiency, a court
must consider ‘the manner, time, and place of the employee’s expression,’ as well as the
events leading up to it.” Lytle v. City of Haysville, 138 F.3d 857, 863–64 (10th Cir. 1998)
23
(quoting Rankin v. McPherson, 483 U.S. 378, 388 (1987)). Relevant considerations
include “whether the statement impairs discipline by superiors or harmony among co-
workers, has a detrimental impact on close working relationships for which personal
loyalty and confidence are necessary, or impedes the performance of the speaker’s duties
or interferes with the regular operation of the enterprise.” Rankin, 483 U.S. at 388.
“These considerations . . . make apparent that the state interest element of the test focuses
on the effective functioning of the public employer’s enterprise. Interference with work,
personnel relationships, or the speaker’s job performance can detract from the public
employer’s function; avoiding such interference can be a strong state interest.” Id.
“[T]he State’s burden in justifying a particular [employment action] varies
depending upon the nature of the employee’s expression.” Connick v. Myers, 461 U.S.
138, 150 (1983). “[T]he employer’s burden to justify its restriction on speech increases
in proportion to the value of that speech in the public debate.” Curtis v. Okla. City Pub.
Sch. Bd. of Educ., 147 F.3d 1200, 1213 (10th Cir. 1998) (internal quotation marks
omitted). Similarly, “‘[t]he burden of caution employees bear with respect to the words
they speak will vary with the extent of authority and public accountability the employee’s
role entails.’” Id. (quoting Rankin, 483 U.S. at 390). “The employee’s burden of caution
is greater when the employee serves in a ‘confidential, policymaking, or public contact
role,’ rather than, for example, a clerical role, because of the higher likelihood the
employee’s speech will cause disruption to the agency’s successful functioning.” Id.
(quoting Rankin, 483 U.S. at 390–91).
24
We begin with Fields’s interests. He contends that he filed his lawsuit “seeking
vindication of fundamental constitutional rights,” Aplt. Reply Br. at 17, and that allowing
a government employer to punish an employee for filing a civil-rights lawsuit will chill
civil-rights litigation. To be sure, we have recognized that “[s]peech which discloses any
evidence of corruption, impropriety, or other malfeasance on the part of city officials, in
terms of content, clearly concerns matters of public import,” and that “an employee’s
First Amendment interest is entitled to greater weight where he is acting as a whistle
blower in exposing government corruption.” Lytle, 138 F.3d at 865 (internal quotation
marks omitted). But, as we have already explained, Fields’s free-exercise claim was
based on an unreasonable construction of the Attendance Order, his Establishment Clause
claim failed because no informed, reasonable observer would have perceived that TPD
was endorsing Islam, and there was also no merit to his other claims. “[A] government
employee’s interest in whistleblowing is entitled to little weight if a reasonable person in
his shoes would not have believed that there was government corruption or wrongdoing.”
Id. at 866. His claims are therefore “less important and less valuable to the public than is
the speech often at issue in public employee speech cases.” Moore v. City of
Wynnewood, 57 F.3d 924, 933 (10th Cir. 1995).
TPD’s interests, on the other hand, are compelling. We have long recognized that
law-enforcement agencies have a “heightened interest . . . in maintaining discipline . . .
among employees.” Lytle, 138 F.3d at 867 (internal quotation marks omitted). Fields
was a commanding officer. His challenge to a superior’s order, by disobedience or by
25
litigation, sets a powerful example. It would likely undermine not just his superiors’
confidence in his loyalty and willingness to implement orders, but also his own authority
as a commander.
In addition, TPD must maintain public confidence that “police protection will be
available to the public . . . and that the police will deal impartially with all.” Horstkoetter
v. Dep’t of Pub. Safety, 159 F.3d 1265, 1274 (10th Cir. 1998) (internal quotation marks
omitted) (police officers could be prohibited from allowing political signs in the yards of
their homes, in part because of the government’s interest in prohibiting the appearance of
partisanship in law enforcement). In particular, the inclusion in the complaint of
numerous largely irrelevant paragraphs attacking “shariah-adherent” Islam, Aplt. App.,
Vol. I at 17, would inevitably create the perception of hostility to a component of the
community. Cf. Locurto v. Giuliani, 447 F.3d 159, 178‒79 (2d Cir. 2006) (“Police
officers . . . are quintessentially public servants. As such, part of their job is to safeguard
the public’s opinion of them, particularly with regard to a community’s view of the
respect that police officers . . . accord the members of that community.”).
Fields contends that Defendants “never explain how any of their interests are
legitimately advanced by punishing Plaintiff for filing this civil rights lawsuit.” Aplt.
Reply Br. at 20. But “[w]e have long said that we may affirm on any basis supported by
the record, even if it requires ruling on arguments not reached by the district court or
even presented to us on appeal.” Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130
26
(10th Cir. 2011). In our view, permitting Fields to amend his complaint to add this
retaliation claim would have been futile.
III. CONCLUSION
We AFFIRM the district court’s summary judgment for Defendants and its denial
of leave to amend.
27